CLEMENTS & CLEMENTS
[2019] FamCA 585
•15 April 2019
FAMILY COURT OF AUSTRALIA
CLEMENTS & CLEMENTS [2019] FamCA 585
FAMILY LAW – CHILDREN – Application by the father seeking orders that children live with him that and there be a moratorium on the time the mother spends with the children while they undergo intensive therapy and that the mother’s time with the children be gradually reintroduced once therapy occurs – Mother seeks orders that children live with her and spend time with the parties as agreed taking into account the children’s views from time to time – Orders that children live with the mother – Orders that children spend time with the father as agreed between the mother and father - Orders that the father communicate with the children by cards and gifts on their birthdays and at Christmas- Order that the mother have sole parental responsibility for the children subject to conditions – Specific issues orders.
FAMILY LAW – PROPERTY – Application by husband seeking an alteration of property interests – Contributions – Superannuation – Inheritances – Orders made for the division of property in circumstances where the Court is satisfied that it is just and equitable to do so.
Family Law Act 1975 (Cth)
J v C in [1969] 1 ALL E.R. 824
Yamada & Cain [2013] FamCAFC 64
APPLICANT: Mr Clements
RESPONDENT: Ms Clements
INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales
FILE NUMBER: SYC 1777 of 2017
DATE DELIVERED: 15 April 2019
PLACE DELIVERED: Hobart
PLACE HEARD: Sydney
JUDGMENT OF: Benjamin J
HEARING DATE: 16 April 2018, 11, 12, 13, 14, 17, 18 December 2018 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Campton SC
SOLICITOR FOR THE APPLICANT: Mills Oakley Ms Ulifford on 16 April 2017 & Mr Schonell SC in December 2018
COUNSEL FOR THE RESPONDENT:
SOLICITOR FOR THE RESPONDENT: Mr Bill Karras
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Longworth
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales
Orders
Parenting
1.All extant parenting orders in relation to H born … 2004 (‘the elder child’), J born … 2006 (‘the middle child’) and K born … 2009 (‘the younger child’) (collectively ‘the children’) are discharged and replaced by those as are following.
2.Ms Clements (‘the mother’) shall have sole parental responsibility for the children in respect of decisions relating to the children’s education and health, subject to:-
(a)the mother notifying Mr Clements (‘the father’) via email of her intention to make a major long term decision in relation to one or all of the children 14 days before she proposes to make this decision and shall give consideration to the father’s wishes prior to making this decision; and
(b)the mother notifying the father via email of her decision within 48 hours of this decision being made.
3.The mother and father are otherwise to have equal shared parental responsibility for the children for all decisions relating to the children’s religious and cultural upbringing, changes to the children’s names and changes to the children’s living arrangements.
4.The children shall live with the mother.
5.The children shall spend time with the father as agreed between the mother and the father.
6.The father is permitted to send the children a card on their individual birthdays and on Christmas by posting these cards to the mother’s address.
7.For the purposes of Order 6 the mother is to ensure that these cards are provided to the children immediately upon receiving these cards.
8.The mother, via email, shall ensure that the father is kept informed of her residential address and particulars of the others who may live with the children and her email address and shall advise the father within 48 hours of the change occurring.
9.The father, via email, shall ensure that the mother is kept informed of his residential address and particulars of the others who may reside with him and his email address and shall advise the mother within 48 hours of the change occurring.
10.Within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, forward directly to the father copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities and this order shall act as sufficient authority for that purpose and that the father shall be at liberty to liaise directly with each child’s school.
11.The parties do all things necessary to continue to attend upon Ms P from R Group for family therapy specifically for the purpose of psycho-education and re-establishing the father’s relationship with the children.
12.In relation to order 11 above:-
(a)each party shall do all things reasonably required of them by Ms P and accept the direction of Ms P in terms of visits and engagement of the children;
(b)the mother shall ensure that she and the children attend at such visits (including with the father) pursuant to those arrangements as recommended by Ms P;
(c)IT IS NOTED that the therapy referred to in Order 11 above is to be reportable and is not confidential counselling;
(d)for the purposes of Order 11 above, the parties shall ensure that this therapy shall continue for as long as the therapist is willing to conduct the therapy and the therapist considers it beneficial to the family; and
(e)the parties shall share equally the cost of the children’s participation in such family therapy.
13.IT IS NOTED that nothing in these Orders and particularly the allocation of parental responsibility precludes the father from communicating with the children’s school or health professionals nor does it permit the mother to restrict such communication.
14.Leave be granted for both the mother and the father to provide a copy of Dr O’s report and proof of evidence prepared by the Independent Children’s Lawyer as well as the reports of Ms P to the children’s treating medical practitioners.
15.Within twenty one (21) days of the making of these orders the Independent Children’s Lawyer/or the Family Consultant shall inform the children of these orders and the mother shall do all acts and things requested of her by or on behalf of the Independent Children's Lawyer to ensure that the children are made available for this purpose.
16.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
17.By way of costs order and within 3 months of the date of this order:-
(a)the mother pay to the Legal Aid Commission of New South Wales one half of the cost of the Independent Children’s Lawyer in these proceedings namely $10,624.50;
(b)the father pay to the Legal Aid Commission of New South Wales one half of the cost of the Independent Children’s Lawyer in these proceedings namely $10,624.50 (subject to any adjustments as between the father and mother in the event of any costs application); and
(c)the mother and/or father may seek an adjustment of these amounts as between them in a subsequent costs application/s made by one, the other or both of them.
18.All extant applications be dismissed, except costs applications made by one, the other or both the mother and the father, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
19.All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
20.Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage Senior Counsel and Counsel to attend.
Property Orders pursuant to s 79 of the Family Law Act 1975 (Cth)
1.After the vesting of the Clements Family Trust pursuant to orders made 18 December 2018 or 42 days from these amended orders (or such alternate time as is agreed between the parties or as otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth)), Ms Clements (‘the mother’) shall:-
(a)pay to Mr Clements (‘the father’) the sum of $888,495.22;
(b)do all acts and things necessary and execute all documents, instruments, and writings required to transfer to the father the whole of her right, title, and interest in G Street, Suburb H, being the whole of the property contained in the Certificate of Title Folio Identifier … (‘the Suburb H property’); and
(c)on or at time of transfer of the Suburb H property to the father, he shall payout and discharge the mortgage/s secured on the Suburb H property and shall indemnify the mother against any liability pursuant to her personal covenants under any such mortgage/s and the shall indemnity the mother in relation to rates taxes and the like on the Suburb H property; and
(d)The father shall be responsible for and pay and otherwise indemnify the mother against any liability including payment in respect of the mortgage to B Bank, statutory rates and charges, utilities and house and contents insurance.
2.Simultaneously with the mother’s compliance with order 1 above, the father shall:-
(a)Do all acts and sign all documents that may be required to transfer to the mother all of his right, title and interest in the property at E Street, Suburb F being the whole of the property contained in Certificate of Title Folio Identifier … (‘the Suburb F property’); and
(b)Sign all documents and do all things including repayment of the principle debt which may be necessary to discharge the B Bank loan and remove the caveat secured over the Suburb F property.
3.IT IS NOTED that the orders made 18 December 2018 for the sale of property owned by the Clements Family Trust shall continue to operate and the monies shall vest in terms of such order.
4.Within forty two (42) days of the completion of the sale of the property owned by the Clements Family Trust the parties shall do all things necessary to vest such trust and ensure division in accordance with the orders made 18 December 2018.
5.Within 14 days of the date of these orders both the mother and father shall do all things and sign all documents in their personal capacities and as trustees of the N Superannuation Fund (‘the fund’):-
(a)List for auction and sale with V Group Suburb D Real Estate property known as 3 C Street, Suburb D, being the whole of the property contained in Certificate of Title Folio Identifier … (‘suite 3’) on the following terms:-
(i)the auction shall take place within six (6) weeks of the parties signing the listing agreement or as soon as is practicable;
(ii)both parties shall attend the auction and in the event suite 3 is passed in, they shall negotiate with the highest bidder and accept any offer to purchase the property at no less than ninety (90) per cent of the reserve price;
(iii)in the event that suite 3 does not sell at auction, within two (2) weeks after the date of auction, then the parties shall re-list the property for sale by auction at intervals of no more than six (6) weeks on the same terms and conditions as set out in this order.
(b)Upon suite 3 being sold at auction the proceeds shall be distributed as follows:-
(i)in payment of the real estate agent’s commission and expenses on the sale;
(ii)in payment of proper legal costs and disbursements of each of the parties of and incidental to the sale;
(iii)in discharge of any mortgage over the property; and
(iv)the adjustment of rates, levies and taxes and other levied taxes including capital gains tax;
(c)Upon completion of the sale the parties shall do all things in their personal capacity and in their capacity as trustees of the fund to cause the special purpose accounts of the fund to be prepared reflecting the adjustment of the member’s balances and the movement of the balance of funds following the sale of suite 3. Within seven (7) days of the special purpose accounts being prepared, pursuant to these orders, the parties shall cause the wife’s adjusted member entitlement to be rolled out of the fund to a complying superannuation fund as nominated by the mother.
6.Simultaneously with order 6 above the mother shall do all such things necessary to resolve from any role she holds with the fund and shall thereafter relinquish any interest she has in the fund.
7.Within forty two (42) days of the date of these Orders the mother and the father do all acts and things necessary to cause the B Bank accounts (with numbers ending in 626 and 191) in the joint names of the mother and father to be closed and that the net funds held in those accounts be divided and paid as to 52 per cent in favour of the mother and 48 per cent in favour of the father.
8.Except as otherwise provided in these orders:-
(a)each of the parties retain ownership against the other and to the exclusion of the other property and interests, including such as are held in private companies owned or controlled by one or other of the parties, trusts and shareholdings and superannuation entitlements of whatsoever nature and kind in their respective ownership, possession, and control as at the date of these Orders and obtained by them in the future;
(b)the mother indemnify and keep indemnified the father from all liabilities in her sole name as at the date of these Orders or into the future; and
(c)the father indemnify and keep indemnified the mother from all liabilities in his sole name as at the date of these Orders or into the future.
9.All extant property applications be dismissed other than costs applications, if any, which are to be dealt with in accordance with the Family LawRules 2004 (Cth).
10.All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
11.Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clements & Clements has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
CORRIGENDUM
FAMILY COURT OF AUSTRALIA AT HOBART
FILE NUMBER: SYC 1777 of 2017
Mr Clements Applicant
And
Ms Clements Respondent
And
Independent Children’s Lawyer
JUDGE: Benjamin J
DATE OF JUDGMENT: 15 April 2019
WHERE MADE: Hobart
CORRIGENDUM: 22 August 2018
1.In respect of this matter the reasons for Judgment (‘the Reasons’) were delivered and parenting and property orders were made on 15 April 2019. Those orders were expressed to be made subject to any mechanical variations. Leave was given for the parties to make submissions in that regard. Submissions were made on behalf of each of the mother and father.
Parenting
2.As to the parenting orders, submissions were made by the legal practitioners for the father on 17 April 2019 saying the intent of the order was to provide copies of the Reasons and other documents to Ms P.
3.The solicitors for the mother, Karras Partners submitted, in a letter dated 18 April 2019, that the mother ‘did not wish to be heard in relation to submissions regarding parenting Orders and the provision of the Judgment to Ms P’. As such the parenting orders were perfected with that change and such orders were uploaded onto the Court portal some months ago.
Property
4.By email dated 17 April 2019 from Mills Oakley, the solicitors for the father, made submissions in a number of areas in respect of the property orders, these included:-
a)Amendment of the timing provisions in Orders 1 and 2 to remove a provision of the Court exercising jurisdiction under the Family Law Act 1975 (Cth);
b)A concern expressed that Order 1 ought to be clear that the father be responsible for payment or indemnify the mother as to the liability to the B Bank in respect of the home plus indemnities regarding statutory rates, charges, utilities and the like;
c)There ought to be a provision in the Orders for a self-executing order in the event of the mother failing to pay the monies provided pursuant to the property orders.
d)There was a concern that Orders 3 and 4 may cut across the interim property orders made with the consent of the parties on 18 December 2018 and as such those orders ought to be deleted; and
e)The solicitors for the father asserted that a different real estate agent should be appointed in relation to Order 5 as to the sale of property owned by the parties’ self-managed superannuation fund.
5.On 18 April 2019 a short letter by way of submission on behalf of the mother was provided to the Court. In this submission it was contended that the opening words of each of the proposed Orders 1 and 2 should be added:-
Upon the vesting of the Clements Family Trust pursuant to the Orders made on 18 December 2018 (or such alternative time as is agreed upon by the parties…’
This was, in one way, a submission asserting that the orders of 18 December 2018 ought to remain in effect.
6.On the same day a lengthier letter was sent by the solicitors for the mother. That letter said that the mother had nothing to say in relation to the deletion of the words at the commencement of Order 1 and 2.
7.This subsequent letter, from the mother’s solicitor, went on to express concern that the words ‘do all such things’ were capable of being interpreted as payment of monies necessary to discharge the mortgage on that property. As a consequence of that submission the solicitors for the mother seemed to agree that Order 2 propounded in the letter from Mills Oakley, the solicitors for the father, should be included and also there should be an Order 3 to provide for discharge of the B Bank mortgage or releasing the mother from her personal covenants. I have adopted that course.
8.As to the Trust, submissions were made on behalf of the mother that the Orders of 18 December 2018 provided that the Clements Family Trust property be sold and the proceeds be divided equally and therefore that Orders 3 and 4 in the initial orders were superfluous.
9.This letter also opposed the self-executing provisions in the event of default sought by the father.
10.On 26 April 2019 a reply was sent to that submission by Mills Oakley, the solicitors for the father. In that letter the father’s solicitors reiterated their submission about the need for a self-executing provision.
11.The solicitors for the father also submitted that there ought to be some time limit in relation to the vesting of the Clements Family Trust. I do not accept that later submission or adopt that submission as clearly the monies from the Clements Family Trust will be needed by each of the parties in terms of adjusting their financial circumstances to meet the substantive requirements of the order.
12.It is clear that the property settlement should take place, if it can take place, once the Clements Family Trust vests pursuant to the orders of 18 December 2018.
13.Finally, issues were raised in respect of the N Superannuation Fund. The solicitors for the father raised, for the first time, questions of payment of costs on the sale of the property and the payment of capital gains tax. These were not matters raised with me in final submissions and seemed to be a substantive change. I was reluctant to make such a change, however, the mother consented to that change in her solicitor’s letter to the Court dated 1 May 2019.
14.On 1 May 2019 the solicitors for the mother sent a letter setting out:-
a)The fall-back positions in respect of the default clause (1 and 2);
b)Submission as to the vesting of the Trust (3 and 4); and
c)Adjustment of the selling costs on the sale of a superannuation property, where the mother consents to the change to order 5 as submitted by the father.
15.Initially this matter was listed for argument on 8 May 2019 so that these issues could be agitated in open Court rather than via email correspondence and submissions.
16.Unfortunately, shortly before that early May 2019 date, I became ill and I was hospitalised. I do not anticipate returning to full time judicial work until at least mid-October 2019.
17.The 8 May 2019 date was vacated and on 30 May 2019, on my direction, an associate wrote to the parties asking for submissions as to whether this matter could be dealt with on the papers. The parties were asked for their responses by 28 June 2019.
18.By letter dated 25 June 2019, the mother’s solicitors consented to the matter being dealt with on the papers, including those submissions contained in their 25 June 2019 letter.
19.By letter dated 4 July 2019 (about one week after the timeline specified in my associates 30 May 2019 letter and about 5 weeks after that initial request) the father’s solicitor replied. She noted that this matter was to be dealt with on the papers and requested that the matter be listed ‘for clarification’ after 15 July 2019 as their senior counsel and instructing solicitor were on recreational leave and sick leave respectively.
20.In a further letter dated 8 July 2019 the mother’s solicitor reiterated the mother’s submissions from their letter of 25 June 2019.
21.Given the time at which the reasons were delivered, the lengthy delay before I will return to full time court work and in the light of the extensive written submissions between April and July 2019, I declined to relist the matter and I decided to deal with the issues on the papers and parties extensive submissions.
22.I considered the request by the parties to vary the timing provisions in Orders 1 and 2. This included a request to delete a provision of the Court exercising jurisdiction under the Family Law Act 1975 (Cth). I was not prepared to make that particular variation to the original orders, given that the complex nature of both the orders and the parties financial circumstances. Further, these parties are in high conflict. I did not want timing orders to be fixed, with a consequence of possible arbitrary or perverse outcomes.
23.The mother had no submissions to make regarding the power of a court to vary the time, but wanted the payment to take place after the sale of the property owned by the parties’ family trust. The solicitor for the husband seemed to agree with the underlying facts; that is, that the trust property was being sold pursuant to an order made in December 2018 and that the property sale had recently been the subject of an exchanged contract. The submission went on to say that the payment should be made within 70 days or the vesting of the trust money, whichever was the earlier. In reply the mother’s solicitor reiterated his earlier submission.
24.I accept the submission that payment to the father was predicated on the parties having access to the trust moneys.
25.In addition, I intended that the time limits set out in the Orders could be varied by agreement or by court order, as I indicated earlier. I see no reason that such approach ought to be altered.
26.There was concern expressed on behalf of the father that in Order 1 it ought to be made clear that the father be responsible for payment or indemnify the mother as to liability to the B Bank in respect of the home plus indemnities regarding statutory rates, charges, utilities and the like. This clarification reflected the intent of the orders and did not attract any contrary submissions on behalf of the mother. As a result, I have clarified that order.
27.A submission was made on behalf of the father regarding a self-executing order on the sale of a property. It was submitted that such an order ought to be included. This submissions was opposed on behalf of the mother.
28.In constructing this particular order, I was aware that there had been an application for a self-executing order prior to reasons being delivered. I had determined, in all of the circumstances in this case, that such an order ought not to be made and that the normal processes of the Court should follow in the event that there was a failure to comply with court orders. As such, I will not include any self-executing orders on the sale of property. If there is a default the normal processes of the Court can apply, where appropriate.
29.As to the concern that Orders 3 and 4 may cut across the interim property orders made with the consent of the parties on 18 December 2018, I accept the submissions of the parties that those orders should be left to operate as envisaged at that time. As such I have varied Orders 3 and 4 to give effect to that approach.
30.Two other issues arose for these orders.
31.First, in respect of the timing for payments, to which I have addressed earlier.
32.Second, there was an issue about the superannuation fund and the sale of a property owned by it. That sale was necessitated by the provisions for the splitting of that fund. With one minor variation the mother agreed to those changes, as I indicated earlier in this corrigendum, and an issue about a selling agent. I have adopted the parties’ consent position, with the minor variation suggested on behalf of the mother.
33.I have determined that the changing of the real estate agent was a substantial matter and ought not to be interfered with.
34.Consequently, having regard to the above I will amend the final property orders as is set out earlier.
I certify that the preceding thirty four (34) paragraphs are a true copy of the Corrigendum of the Reasons for Judgement herein of the Honourable Justice Benjamin.
ASSOCIATE:
DATED: 22 August 2019
FAMILY COURT OF AUSTRALIA AT HOBART FILE NUMBER: SYC 1777 of 2017
Mr Clements Applicant
And
Ms Clements Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
1.Mr Clements (‘the father’) and Ms Clements (‘the mother’) are and have been engaged in expensive and high conflict parenting and property proceedings following the breakdown of their marriage.
2.The parenting proceedings relate to where their three children, H aged 15 (‘the son’), J aged 11 (‘the elder daughter’) and K aged eight (‘the younger daughter’) (collectively ‘the children’) should live and other parenting orders.
3.The property proceedings relate to a number of real properties owned by the parties, their family trust and their superannuation, together with other property including personal property.
4.The trial commenced on 16 April 2018 (‘the April hearing’) and was adjourned part-heard for a further six days of hearing in December 2018 (‘the December hearing’). This delay was to see if processes could be put in place to restore the relationship between the father and the children. That effort met with no or limited success.
5.Unsurprisingly, each of the parents looked to the other as the root cause of the conflict and the relationship breakdown. Each parent to one degree or another either minimised or denied their own part in that outcome.
6.The end result is that:-
a)the wealth that these parties had created over a significant period of time has been significantly dissipated;
b)the financial security supporting the children has been undermined;
c)the relationship between the children and each of their parents has been irreparably damaged with only a modest possibly of some remediation; and
d)the post separation relationship of these parents is so poisonous that it will likely persist for decades or even generations.
Issues as to Children
7.It is the father’s claim that the mother has alienated the children from him. The father asserts that he is a loving and caring parent and that if the children were put into his full time care and be excluded from the mother for a period of time, the duration of which he does not precisely specify, then he would repair his relationship with the children and they would be able to enjoy a relationship with both of their parents.
8.This, the father contended, would also enable the children to enjoy a relationship with their paternal grandparents, one of whom, the paternal grandmother, is in the terminal phase of an illness. It is unlikely in the current circumstance that she will see the children again, nor will the children see her.
9.The father says in those circumstances, at least for the time being, that he should have sole parental responsibility of the children, which presumably will eventually devolve to equal shared parental responsibility. He seeks that in exercising the sole parental responsibility he should fully inform the mother of any decision he proposes to make in respect of the children.
10.The father proposes that the children undergo intensive therapy before and during this process and that the mother’s time with the children be gradually reintroduced once the therapy occurs.
11.That course of action is not supported by the single expert Dr O (‘the single expert’), who observes:-[1]
In my view unless the Court forms a particularly negative view of [the mother], I think that the change of residence would be extremely difficult to implement. The girls would find it very distressing and it begs the question of whether the Court would be able to include [the son] in such orders.
[1] Exhibit E18 Tab 2 single expert report dated 6 April 2018 page 47.
12.Sadly, on the evidence the outcome sought by the father is more of an expression of hope over reality.
13.The mother provided two case summaries, one at the commencement of the hearing in April 2018[2] and another at the commencement of the hearing in December 2018.[3]
[2] Exhibit E16A.
[3] Exhibit E16B.
14.In her subsequent case outline the mother sought orders for equal shared parental responsibility and that the children live with her. She sought further that the children spend time with the father as is agreed between the parties, taking into account the children’s views from time to time and with a requirement that the children and the father continue to participate in family therapy.
15.Both parties asserts that the other was physically, emotionally and verbally abusive to the other during the course of their relationship. The father asserts that the mother has undermined his relationship with the children, which the mother denies.
16.It is in that context that the Court must decide:-
(a)Who has parental responsibility for the children;
(b)With whom the children live;
(c)How the children spend time, if any, with the other parent;
(d)How the children communicate with each parent; and
(e)Other relevant issues, such as what ongoing therapy occurs.
17.The parties have significantly reduced their overall wealth through these proceedings. The father asserts that he has spent $596,363.70 in legal fees to the commencement of the trial and that at the end of the hearing he will have incurred a further $150,624, making a total of about $751,000.[4]
[4] Father’s costs notice Exhibit E38.
18.The mothers’ costs of the proceedings up to and including the first day of this hearing are $425,969.96. Her notice of costs[5] advises $5,632 for each additional day of the hearing, being a further amount of $28,160. This makes for a total of about $425,970.
[5] Mother’s costs notice Exhibit E48.
Issues as to Property
19.The father tendered a minute of order in terms of property.[6] He wished to retain the property at Suburb H (‘the Suburb H property’) and to retain the property in the parties’ family trust (‘the family trust’). He sought that the mother retain the parties’ former matrimonial home at Suburb F (‘the Suburb F property’).
[6] Exhibit E37.
20.In addition the father sought payment to him by the mother of $1.2 million. He sought other ancillary orders as set out in his minute of order.
21.The mother sought orders that she take the Suburb F property, the father have the Suburb H property subject to releasing her from the mortgage over that property, and that the father pay $220,000 to her.
22.She was content for the property held by the family trust to be retained by the father.
23.The mother’s application in respect of superannuation was for the sale by auction of a real property owned by the parties’ self-managed superannuation fund. She sought a payment of the remainder of the sale proceeds, after any fees and disbursements have been paid, to a nominated superannuation fund account in her name.
24.The parties prepared a joint balance sheet.[7] There are issues of valuation of various properties although much was agreed. There were issues in relation to contribution and future needs.
[7] Exhibit 36B.
BACKGROUND
25.The mother was born in 1971 and is in relatively good health. The father was born in 1971 and is also in relatively good health.
26.The mother asserts the parties commenced cohabitation in April 2001. The father asserts that the mother may have spent two or three nights per week at his home, but that she lived at her parents’ home. On balance, given the evidence of the mother and the father’s partial admission that the mother stayed with him two or three nights a week, I prefer the evidence of the mother. I am satisfied the parties commenced cohabitation in April 2001.
27.The parties married in 2003.
28.The son was born in 2004, the elder daughter in 2006 and the younger daughter in 2009.
29.In 2002 the father purchased a property at Suburb X (‘the Suburb X property’) for $430,000 and borrowed $222,000 towards the purchase of that property. I am satisfied, on balance, that the mother applied $50,000, which she had received as a gift from her father in 1999, to the reduction of the mortgage on that property. This was in dispute. Having heard the evidence in respect of this and seen the documents, I am satisfied, on balance, that the mother has established that gift and I accept that it was used to repay a loan on the Suburb X property. I prefer the evidence of the mother to that of the father in that regard.
30.In September 2006 the parties purchased the Suburb F property and borrowed $800,000 from the Y Bank towards the purchase.
31.In July 2008 the parties purchased a business premises at Suburb D for their self-managed superannuation fund.
32.The father commenced his business in 1996 and I am satisfied that it was a very modest business at the time the parties commenced cohabitation.
33.I accept the evidence of the mother that there were renovations undertaken at the Suburb F property in 2010 and 2011.
34.In 2013 the parties went on a caravan trip with the children.
35.In 2014 the home at the Suburb F property was subject to a fire and as a result needed extensive re-building works.
36.In 2015 the parties purchased the Suburb H property and borrowed a significant amount of money on that property.
37.On 14 September 2016 the father sold his business for about $2.5 million.
38.In October 2016 the mother withdrew $1 million from the proceeds of sale of the business and placed it in an account in her name.
39.On 22 December 2016 the parties separated.
40.These proceedings were commenced in March 2017. In early May 2017 the father wrote to B Bank requesting a freezing of the mother’s account containing the $1 million, although this had been reduced to under $900,000 at that time. The effect of the freeze was that all of the mother’s accounts were frozen and she had no access to funds. This has been a source of significant upset to the parties.
41.In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context.
42.The procedural history of the matter is:-
·On 21 March 2017 the father commenced these proceedings by way of an Initiating Application seeking final parenting and property orders. Shortly thereafter he filed an Application in a Case on 18 April 2017 seeking interim orders that the children spend time with him.
·On 19 April 2017 the mother filed her Response to Initiating Application, and further filed a Response to the Application in a Case on 15 June 2017.
·On 6 June 2017 the parties attended a financial case assessment conference before Registrar George. No agreement was reached as to the financial dispute between the parties. On the same day Registrar George made directions for the appointment of Mr Z (‘the property valuer’) as the single expert to value 5 pieces of real estate and Ms AA (‘the forensic accountant’) as the single expert forensic accountant.
·On 8 June the parties attended initial appointments with a family consultant Ms BB (‘the family consultant’) as part of a Child Responsive Program. On 15 June the parties and the children attended further appointments.
·On 19 June 2017 Justice Le Poer Trench listed the parenting issues in this matter to a date to be fixed for an interim hearing.
·On 21 June 2017 the Child Responsive Program Memorandum was released to the parties.
·On 27 June 2017 Senior Registrar Campbell made orders by consent that the parties have joint parental responsibility for the children, that the children live with the mother, and that the elder daughter and younger daughter spend time and communicate with the father. It was also ordered by consent that the parties arrange and undertake non-reportable family therapy. No orders were made for the son to spend time with or communicate with his father, although leave was granted for the parties to apply in that regard.
·On 1 September 2017 the mother filed an Application in a Case seeking the suspension of the consent orders made 27 June 2017, the appointment of an Independent Children’s Lawyer, the appointment of a single expert for the parenting issues, and orders concerning the school enrolment of the younger daughter.
·On 28 September 2017 the father filed a Response to the Application in a Case, seeking sole parental responsibility in his favour for decisions relating to the schooling of the elder daughter and the younger daughter, shared parental responsibility for all other aspects and for the son, that the children live with the him and spend time with the mother, the appointment of an single expert for the parenting issues, and costs.
·On 29 September 2017 the matter was listed again before Senior Registrar Campbell. An Independent Children’s Lawyer was appointed. Further consent orders were made suspending the children’s time with the father, unless the children expressed a wish to see him and appointing the single expert.
·On 19 October 2017 Registrar Hayward made orders in chambers regarding an additional component of the property valuer’s report. Further, on 23 October 2017 Registrar Hayward made directions for the parties to attend a conciliation conference in relation to financial matters on 30 January 2018.
·On 13 November 2017 the Independent Children’s Lawyer filed a Notice of Address for Service with the Court.
·On 8 December 2017 Senior Registrar Campbell made orders that the younger daughter and the elder daughter spend supervised time with the father, and that the son spend time with the father according to the son’s wishes.
·On 11 January 2018 this matter was listed before me for an interim property hearing. I made interim property orders and delivered reasons. I also made trial directions for the final hearing, which was scheduled for three days commencing 16 April 2018.
·On 7 February 2018 the mother filed an Application for Divorce in the Federal Circuit Court. The divorce was granted on 13 March 2018 and became absolute on 14 April 2018.
·On 27 February 2018 I made further interim property orders.
·On 10 April 2018 I released the report of the single expert to the parties and their legal representatives.
43.This matter was listed for hearing in relation to the parenting issues for three days commencing 16 April 2018. Evidence was given that day by the single expert and the mother gave her evidence in chief. A transcript of that evidence was available on that first day of hearing.
44.The proceedings were stood over part-heard to December 2018 to enable the parties an opportunity to see whether they could resolve the issues regarding the three children. Unfortunately that did not occur. It also enabled the property matter to be heard at the same time.
45.Between the April hearing and the December hearing the parties attended reportable family therapy with the family therapist pursuant to an order which I made on 13 August 2018. The family therapist provided a report on 24 September 2018.
46.In addition to the procedural history outlined above there were a number of applications for the release of funds from one party to the other, the payment of expert fees, and the like.
THE EVIDENCE
47.The father relied upon:-
a)His Initiating Application filed 21 March 2017;
b)His Amended Reply as to property only filed 19 June 2017;
c)His Affidavit filed 23 March 2018;
d)His Affidavit filed 21 November 2018;
e)His Financial Statement filed 21 November 2018;
f)An Affidavit of the Mr CC Clements filed 23 March 2018;
g)An Affidavit of the Ms DD Clements filed 23 March 2018;
h)An Affidavit of Mr EE filed 19 November 2018;
i)An Affidavit of Ms U, the father’s treating psychologist, filed 23 March 2018;
j)An Affidavit of Dr W, the father’s treating psychiatrist, filed 23 March 2018;
k)Reasons for judgment dated 7 February 2018;
l)Statement of father produced 12 December 2018;[8]
m)A letter from Dr W dated 24 November 2018;[9]
n)A record form the children’s school of 15 March 2018;[10]and
o)Updated information from the father’s psychologist dated 20 November 2018.[11]
[8] Exhibit E40.
[9] Exhibit E49.
[10] Exhibit E50.
[11] Exhibit E53.
48.The father’s legal representatives provided three tender bundles of documents containing the annexures to the affidavits upon which he relied.[12] Further, the mother’s Financial Statement filed 25 July 2018 was tendered into evidence as Exhibit E45, as was the father’s affidavit filed the same date.
[12] Exhibit E19, and Exhibit E29.
49.The father relied upon his case outline and a later addendum, which were tendered into evidence as Exhibit E15 and Exhibit E15B. This was not accepted as evidence as to the truth of the information contained therein, but as evidence of the father’s position.
50.The mother relied upon:-
a)Her Response to Initiating Application filed on 19 April 2017;
b)Her Affidavit of Evidence in Chief filed 23 March 2017;
c)An Affidavit of Mr FF (‘the maternal uncle’) filed 23 March 2017;
d)An Affidavit of Ms GG filed 23 March 2017;
e)Her Application in a Case seeking costs filed 29 March 2017;
f)Her Affidavit in supports of her Application in a case filed 29 March 2017; and
g)The mother also relied on parts of the father’s financial statements sworn 19 April 2017 and 25 July 2017,[13] and the father was cross examined on his affidavit filed 25 July 2017.
[13] Exhibits E44 and E45.
51.The mother’s legal representatives provided three tender bundles of documents containing the annexures to her affidavits.[14] Further, the mother’s Financial Statement filed 19 April 2017 was tendered into evidence as Exhibit E44.
[14] Exhibit E20, Exhibit E28, and Exhibit E39.
52.The mother also relied upon her two case outlines, which were tendered into evidence as Exhibit E16A and Exhibit E16B. This was not accepted as evidence as to the truth of the information contained therein, but as evidence of the mother’s position.
53.The Independent Children’s Lawyer relied upon the:-
a)Child Responsive Memorandum of the family consultant dated 21 June 2017 which was admitted into evidence without controversy;
b)Report of the single expert released 10 April 2018;[15]
c)Proof of evidence of the single expert;[16]and
d)Report and curriculum vitae of the family therapist, Ms P (‘the family therapist’) dated 10 December 2018.
[15] Exhibit E 18 Tab2.
[16] Exhibit E35.
54.The Independent Children’s lawyer provided three tender bundles of documents upon which they relied.[17]
[17] Exhibit E18.
55.The Independent Children’s Lawyer also relied upon his case outline, which were tendered into evidence as Exhibit E14. This was not accepted as evidence as to the truth of the information contained therein, but as evidence of the Independent Children’s Lawyer’s position.
56.With the voluminous tender bundles and exhibits to the parties affidavits I indicated to the parties that they needed, in submission or during the hearing, to take me to the relevant parts.
The father
57.The father gave evidence in accordance with his primary parenting affidavit filed 23 March 2018 and his updating parenting and property affidavit filed 21 November 2018. I have read and had regard to those affidavits.
58.The father gave evidence that he had read the reports of the single expert, including the updated points of evidence.[18]
[18] Exhibit E35.
59.The father also relied on his financial statement filed 21 November 2018.
60.In addition the father provided a supplementary statement[19] in which he details his interactions with the children between August 2018 and the December hearing. The children spent time with the father in the presence of the family therapist on 13 September 2018, 18 October 2018, 2 November 2018, and 6 December 2018. The father states that in general the children would not talk to him and did not interact with him, aside from one positive interaction with the elder daughter on 18 October 2018 and a number of negative interactions with all the children on the other occasions. He reports that the son retreated to a bathroom on 13 September 2018 and that both daughters made negative comments such as ‘Dad is fake’ and ‘Dad is evil’ on 2 November 2018. On 6 December 2016 the son did not attend the session at all.
[19] Exhibit E40.
61.The father also outlines in his statement the steps he took and what he said to the children in line with the family therapist’s recommendations.
62.The orders sought by the father in his Minute of Order[20] are in two alternatives. First, that the father and the mother have joint parental responsibility, implicitly that the children live with mother, that the children spend time with him, and that the family undergo further confidential family therapy with the family therapist.
[20] Exhibit E17.
63.In the alternative, the father seeks that if the Court finds that the mother is unwilling and/or unable to support a relationship between the children and the father, then orders should be made that he have sole parental responsibility for the children and that they live with him. If such orders are made he seeks further orders that the children spend time with the mother in a circumscribed regime.
64.It is clear to me, given the father’s claims that the mother has alienated the children from him, that he believes that the mother will not support the children’s relationship with him. As such it is likely that the preferred course for him is the latter one.
65.The father confirmed that this was what he wanted. The effect of that was that the children would go into his care and that he would have sole parental responsibility for them. He said that he would engage with social scientists to manage the children’s transition to him. Once the children had settled and reunited with him then he would then make arrangements with the children for them to spend time with the mother as advised by the experts. He said that he could not particularise how this would occur as he would need to have regard to the needs of the children at that time.
66.In cross-examination he was pressed in relation to how the children’s transition to his care would work. He acknowledged that it would be hard on the children, but his view was that they would cope. I assess that as being an expression of his hope or perhaps his desperation. However, I am not as confident as the father in that regard, given the pessimistic evidence of the single expert as to the likely outcome if the children’s primary residence was changed.
67.The father has been seeing a psychiatrist, Dr W, over some time to help him cope with the stress of the proceedings. Dr W’s report[21] is in evidence before me, and I have had regard to it. Exhibited with her affidavit was her report dated 11 March 2018. I read that in conjunction with her later material.
[21] Report filed 23 March 2018.
68.The father has also been seeing a psychologist, Ms U, who provided evidence in terms of her affidavit filed 23 March 2018 and the attachment to it.
69.The father is in good health, however has some psychological issues which were set out in the reports of his psychiatrist and psychologist, but the prognosis in that regard is good.
70.There is no doubt that the father loves his children and believes that it is in their best interests, and I find that it would be in their interests, to spend time with him. Further, he wants the children to know his parents. The paternal grandmother is very ill and is likely to pass away soon. As it stands she will not see the children and the children will not see her. The father gave cogent reasons why they should see the paternal grandmother. The paternal grandfather is likewise not in good health.
71.The father gave evidence of the endeavours which he had undertaken to try to restore his relationship with the children. It seems that on the father’s approach the police may need to be involved if the orders he seeks are put in place.
72.If the children are placed into the father’s care he would rent premises near the children’s present school. He said he could only afford a three bedroom home. There was some criticism of him in that respect. I reject that criticism. It is neither here nor there in the context of the parenting dispute in which the children are caught.
73.He gave an explanation about what he would do if the children ran away.
74.The father was cross-examined as to whether he could afford to care for the children. I am satisfied that if the children were placed into the father’s care he would do whatever it takes in terms of the financial arrangements to provide a home for them and meet their school fees.
75.The father gave detailed and sensitive assessments of the personality of each of the three children.
76.As to the son, the father conceded that it was quite likely that he would reject the father and end up remaining with the mother. One of the consequences of that would be that the sibling alliance would likely be broken. The father said the Court should give little weight to the views of this fifteen year old child. With respect I disagree with him.
77.The father observed that the son became more and more reliant on the mother prior to separation.
78.The father says the major cause of the children selecting one parent and rejecting another rests with the mother’s attitude. He takes some responsibility, but that responsibility is very limited or marginal.
79.He clearly does not accept, what I regard as the better balanced assessment provided by the single expert. When pressed in cross-examination, the father agreed that the children would have seen the parents yelling at each other, and he acknowledged that at times the children would observe him being angry towards the mother although he denied any significant cause of arguments by him. He expressed his behaviour not as a result of anger, but as frustration. I do not believe that particular evidence of the father.
80.The father did not agree with the assessment of the single expert in sub-paragraph (d).[22] When referring to the single experts report I will be referring to the internal numbering, page numbering, which appears at the top of each page.
[22] Exhibit E18 Tab 2 single expert report pages 18 to 67 – top of report has individual numbering (at top) of pages 1 to 50.
81.The father made some limited concessions in relation to physical violence, although he sees himself more as the victim than the abuser. He concedes that the son also sees him as an abuser.
82.On the evidence, including of the single expert, it is clear that given the conflict between the parties prior to separation, there is a reasoned basis for the son to have come to that view.
83.The father sees the mother as a highly volatile woman.
84.The father gave evidence of an event on 19 April 2017.[23] This must have been a stressful event for the children. The consequence of this is that the son has stopped seeing the father. I have had regard to all of these events and neither parent comes out with any credit as a result of this.
[23] Father’s affidavit March 2018 paragraphs 66 to 68.
85.The father’s evidence as to his involvement included kicking or moving a letterbox and for him to include the children in the conflict by saying ‘I have just driven two hours to see you, I want to have time with you. Has your mother had anything to do with this?’
86.The father may not like it, but I accept the evidence of the single expert that the son withdrew himself from the conflict. The family consultant noted this in her June 2017 report where she said at paragraphs 16 and 17:-[24]
16.[The son] said that both [the father] and [the mother] talk to him about one another. He said ‘they both say bad stuff about the other’. [The son] said that he would like his parents to refrain from discussing same with him. [The son] said that [the father] has been ‘lying to his lawyers’. When asked to elaborate, [the son] said that [the mother] told him that [the father] was ‘freezing her accounts’. He said ‘she told me he’s never going to stop earning money but she doesn’t even have a job’. [The son] said that ‘sometimes’ [the mother] gets letters from her lawyers and that she tells him all about their contents, ‘like if dad lied’.
17.[The son] said that he has chosen not to spend time with his father because ‘I don’t want to be influenced’. He explained that [the father] attempted to persuade him to remain at [his high school], but that he ‘hated it there’. [The son] said that he does not want to spend time with [the father] ‘until I’m a bit older’. He said that he would like ‘the court thing to die down first and until he’s stopped being harsh to my mum and they’re out of each other’s lives’. [The son] said that [the mother] is concerned that, if [the young daughter] spends time with [the father] without [the elder daughter], he will lose his temper. He said that it is in his understanding that [the elder daughter] does not truly wish to spend time with [the father], but that she does so as a means of protection for [the younger daughter].
[24] Exhibit E18 Tab 1.
87.It is interesting that the son was asked if he had a message for the Judge and he replied:-[25]
18.When asked if he had a message for the Judge, [the son] said ‘Just the same. That I don’t want to spend time with my dad at all and I know my sisters don’t want to spend time with him at my Auntie’s house with a family they barely know’. When asked if he had a message for his parents, [the son] said that he hopes the ‘fighting’ will cease because it is most stressful. He said that his message for his father is that, if he does have to spend time with him, ‘don’t be working’.
[25] Ibid.
88.The father conceded a number of violent interactions with the mother, including throwing water into her face and punching a hole in the door (he tried to minimise the impact on the door or that he tried to minimise the significance of the event). He denied smashing the bathroom door, however, on balance I am satisfied that that event had occurred.
89.He conceded that he drove a car towing a caravan with the mother locked in the caravan. He tried to give an explanation as to this, however irrespective of the mother’s likely poor behaviour it was not appropriate to adopt that course and it would have had an impact upon the children.
90.An further indication of the father’s understatement and/or lack of insight was in relation to the events in late 2014 when he held the mother against the garage. He denied holding her by the throat and at one stage denied that he had a rake in his hand. When challenged in earlier evidence he conceded that he probably did have a rake in his hand, but said it was not used to threaten or harm the mother. He gave a history of an argument which had been going on for some time. He said that he could not recall picking up the rake.
91.There was an issue as to whether the father spat at the mother or whether he spat on the floor in front of her. Irrespective of which occurred, it was a gross act.
92.The father was unhappy about the son’s change of school. His evidence in that respect shows the inability of the parties to communicate.
93.The father sought to rely on an affidavit of Ms XX. She was not available and as such the father did not rely on that material.
94.So what do I make of the father’s evidence? He lacked insight as to his part in the chronic conflict and at times minimised or denied events which would reflect poorly upon him. His evidence is not entirely impeached, but I treat it with some caution.
Dr W
95.Dr W is a consultant psychiatrist who provided evidence in terms of her affidavit filed 23 March 2018. Exhibited with her affidavit was her report of 11 March 2018.[26] There was no challenge to Dr W’s qualifications. She has seen the father on about twenty three occasions between December 2011 and June 2017. She diagnosed the father as having repetitive major depressive episodes, cluster C-dependent personality traits, severe relationship stressors, and she notes that he functioned well between arguments/conflicts. I accept her evidence as to the father’s health.
[26] Exhibit E19 Part 2.
96.Her evidence was admitted without controversy and she was not required for cross-examination. This was on the basis that all of the information provided to her came from the father. The annexures to her affidavit provided evidence as to her qualifications and showed that as at March 2018 the father had been seeing her from 2011 up to 2017.
97.I accept Dr W’s diagnosis as to the father’s mental health.
Mr EE
98.Mr EE provided evidence in terms of his affidavit filed 19 November 2018. Mr EE is a friend of the father. Paragraphs 17 to 20 of his affidavit were struck out.
99.His evidence was otherwise admitted without cross-examination and consequently without controversy.
100.His evidence was not particularly helpful. It was in many ways a character reference. His observations of the father were that he was a good father who spent time with his children and that the parents had a different approach to parenting.
101.I have considered this in the light of all the material, but it is not pivotal given the issues which I need to determine.
Ms DD Clements
102.Ms DD Clements the father’s mother (‘the paternal grandmother’) gave evidence in accordance with her affidavit filed 23 March 2018. I have had regard to the material contained in that affidavit. There was clearly unhappiness between the mother and the paternal grandmother, which has been simmering for many years.
103.The paternal grandmother asserted that this was one sided. Again the cause of the conflict is unhelpful, and the fact that the paternal grandmother and particularly the mother continue their conflict is unhelpful.
104.I generally accept her evidence, although it is somewhat partisan. I am not satisfied that it was impeached.
Mr CC Clements
105.Mr CC Clements (‘the paternal grandfather’) gave evidence in accordance with his affidavit filed 23 March 2018. He gave clear evidence that the amount of money that he lent the father must be paid back in full and he would press him for that money plus interest.
106.He conceded that the father pushed the mother into a bush on one occasion, which seemed to support the mother’s contention in that regard.
107.I generally accept his evidence, although it is somewhat partisan. I am not satisfied that it was impeached.
Ms U
108.Ms U is a psychologist who provided evidence in accordance with her affidavit filed 23 March 2018. Ms U provided a report which was exhibited to her affidavit.[27] That exhibit included her education and qualifications. There was no issue taken in respect of her qualifications.
[27] Exhibit E19 Tab 3.
109.Ms U has seen the father on numerous occasions over the last twelve years. In her report she recorded 68 attendances over that period of time. She diagnosed the father has having depressive episodes in the context of significant marital conflict and dependent personality traits. She recommended that he continue to have cognitive behavioural therapy given the stress that he is undertaking.
110.She went on to say that the father demonstrated significant resilience against the background of extreme stress and that his prognosis is good. The basis of Ms U’s diagnosis and prognosis was essentially the material provided by the father.
111.In addition, Ms U’s notes were provided to the Court and were included as Tab 3 to the tender bundle by the Independent Children’s Lawyer.[28] In addition, there was an up to date report from Ms U.[29]
[28] Exhibit E18.
[29] Exhibit E53.
112.Ms U confirmed, in relation to the father, that there appeared to be increasing levels of frustration leading to anger in the mental health plan of January 2008.
113.There was some evidence from Ms U that whilst the father was content to have treatment he was resistant to chemical medication. He has undertaken treatment for a significant period of time.
114.Ms U initially conceded in cross-examination that the father had agreed that he held the mother by the throat against the wall in the garage, however on reflection she said it may have been that he held the mother against the wall. As I have said elsewhere, the issue is not the specifics of whether it was by the throat or against the wall rather the issue is the act of violence by the father against the mother. In any event, it was a very violent exchange in which the children were directly and indirectly involved.
115.All of Ms U’s evidence is based upon the self-reports from the father. I am satisfied that there is an element of self-justification and exaggeration in relation to his complaints about the mother and I am also satisfied that Ms U is a treating psychologist who accepts the history provided by the father.
116.I am satisfied that she endeavoured to give evidence truthfully and reliably and I have had regard to that evidence. There was no issue about her qualifications.
The mother
117.The mother gave evidence in terms of her affidavit filed 23 March 2018 (‘mother’s March affidavit’), her second affidavit relating to property and updating parenting matters filed 21 November 2018 (‘mother’s November affidavit’), and her financial statement filed 9 November 2018.
118.The essence of her March affidavit was that she and the father had the three children and gave evidence as to their current circumstances. The mother provided a procedural history and a parenting history.
119.In the parenting history the mother asserted that she was the primary carer of the children and that the role of the father was of no real assistance to her. I have concerns about that part of the evidence given the close relationship the father had with the children, as their relationship does not seem close now given that they do not want to spend time with him.. However, I am satisfied the mother was the primary carer.
120.She asserted that after separation there were difficulties with regard to the father picking up the children and that this impacted on the children.
121.The mother provided evidence as to what happened after interim orders were made in June 2018. By that time the son had ceased seeing the father and the relationship between the other children and the father deteriorated for the remainder of that year.
122.The father has not seen the children since that time except in the formal structures with the single expert and the family therapist.
123.The mother asserted significant family violence perpetrated against her by the father and set that out in detail in her March affidavit. She also set out difficulties with regard to the children’s school. The parties were able to resolve those in relation to the elder daughter. However, given the evidence, I am satisfied that the mother unilaterally changed the son’s school.
124.As to the mother’s November 2018 affidavit she sets out the history of the relationship and the endeavours for family therapy since the commencement of the trial in April 2018. She provided further supplementary evidence in relation to the children and their engagement with the family therapist.
125.The thrust of her evidence is that she encourages and wants the children to spend time with the father, but that they are not willing to do so. She says that it is not her behaviour which leads to that, but the impact of the father’s violence over the period of the relationship.
126.In part of her evidence in relation to the family therapist it appears that the mother abrogates her parental authority and that is shown in the evidence of the family therapist and the single expert.
127.As to property, the mother sets out the assets at cohabitation, including $50,000. Given the document annexed to the mother’s November 2018 affidavit I accept that she had savings of $50,000 and that she owned a motor vehicle which she had purchased shortly before cohabitation.
128.She then sets out her views of the contributions during the marriage and the relevant factors under s 75(2) of the Act.
129.She provided evidence as to the spending of the funds transferred into her name in late 2016 totalling about $1 million. Further, the mother gave evidence as to the impact on her financial management of the freezing of her bank accounts since May of 2017.
130.From her financial statement the mother deposes that she is currently not employed. She believes that she can retrain as an interior decorator and if successful in that respect could earn an income of up to about $60,000 per year. Her income is presently Centrelink benefits. She has significant outgoings in terms of the care of the children, payment of debts and the like.
131.Much of the property of the parties has been agreed.
132.The annexures to the mother’s March affidavit is Exhibit E20. In addition the mother tendered a bundle of documents containing about 857 pages, which was tendered into evidence in two volumes as Exhibit E31. In relation to those significant exhibits I indicated to the parties and they understood that I would only go through such parts of the exhibits to which were brought to my attention during evidence or during submissions.
133.At the conclusion of the hearing the mother’s senior counsel said that the mother accepted the parenting orders suggested by the Independent Children’s Lawyer with some minor amendments. The mother tendered the property orders which she sought.[30]
[30] Exhibit E56.
134.The mother has had legal advice from her current solicitor throughout this process and since first consulting him in 2016.
135.The mother had been seeing Ms HH, a psychologist, but has not seen her recently.
136.The mother acquired an inexpensive caravan for about $3,000 in 2016.
137.The mother was cross-examined about the value of the Suburb F property. I gave that evidence no weight.
138.The mother gave clear evidence of cohabitation. I accept her evidence that cohabitation commenced in 2001 as she asserted.
139.The mother was cross-examined in relation to her insights into the impact of the conflict upon the children, in particular about comments made by the single expert.
140.It is clear that the children’s relationship with the father has deteriorated since separation. The mother was cross-examined at length in relation to the changes of the children’s attitude. Having heard all of the evidence I am satisfied that the mother, whilst she said she supports the children’s relationship with the father, undermines that relationship. I am satisfied that she has engaged them in providing them with her versions of the history of violence, including informing them of the violence that occurred prior to separation, the impact of the freezing of the accounts on her, and more broadly.
141.This can be seen in the way the elder daughter echoed her mother’s views.[31] I am satisfied the mother is at times quite volatile[32] and I agree with the views of the single expert where he says:-[33]
…In my view this is gradually drawn them into a view that their father is the abuser and their mother is the victim, further consolidating their loyalty towards her and their repudiation of him in the aftermath of separation. …
[31] Exhibit E18 Tab2 single expert report page 42.
[32] Ibid page 44.
[33] Ibid page 44.
142.This is ameliorated in some way by his further comments that:-[34]
…A factor [emphasis added] which has probably cemented this has been the children’s natural desire to reduce their families predicament to manageable proportions after years of high tension within the home, and they have done what so many children in this situation do, which is to choose one side over other using the evidence available to them.
[34] Ibid.
143.The mother was cross-examined in relation to the father’s involvement in the parenting of the children. Having heard her evidence I am satisfied that whilst the mother did significant amounts of the parenting, she understated the father’s involvement in the care of the children.
144.In 2017 the mother absented the children from school for significant time, particularly in term 3. to avoid their contact with the father. The mother provided no reasonable explanation for those occurrences.
145.The mother has dragged her feet in relation to steps such as engaging with the supervisors and engaging with the family therapist.
146.Interestingly the mother says she does not object to the children seeing their father, provided that they are willing, and acknowledges from her perspective that they all love their father. I do not believe her evidence in that regard.
147.The mother has undergone an anger management course and from her evidence seems to have taken much from it. Whether this is substantive or rhetoric it is hard to say.
148.The mother was cross-examined about the family therapist’s comments regarding her attitude to the children’s relationships with the father was ‘not her problem to fix’ or ‘it was nothing to do with her’. The mother prevaricated in relation to this evidence. I am satisfied that the mother uses parental authority to make things happen when she chooses that they should happen, and conversely does not exercise parent authority when the outcome is not one which she desires.
149.At times during attempts on resolving the breakdown in the children’s relationships with their father, one or other of the children used toilets to hide in, and in doing so used the language of the mother.
150.The children also engaged at some levels with the family therapist when the mother came to the last two appointments and exerted that parental responsibility. The children then were able to be moved from the waiting room into the family therapist’s office.
151.An example of the mother’s interference in my view is the text message sent around Father’s Day 2017, in particular[35] where language was used allegedly by the son, but is clearly adult language or language copied from the mother. There are other text messages which example this approach.
[35] Exhibit E19 page 30.
152.I am satisfied that the mother does not support the children spending time with the father and does not use her parental authority to ensure that it happens.
153.The mother’s evidence at times is in contradiction to what the family consultant noted in the Child Responsive Memorandum dated 21 June 2017 at paragraphs 23 and 27.
154.I am confident that the mother’s evidence in relation to this circumstance is not reliable.
155.In a note of a meeting between the mother and the school on 28 June 2017 the mother described an incident which happened over Easter where one of the children was allegedly strangled. The mother knew that was not correct and yet persisted with that story.[36]
[36] Exhibit E18B Tab 2 page 59.
156.In her March affidavit the mother asserted that one of the children said to the mother that the father may be a risk to the teacher. The mother knew what was nonsense, but took no steps to intervene.
157.It is significant that in the same affidavit at paragraph 62 the mother asserts that the child said words to the effect ‘now he is punishing me, just like he does to you when he is angry’.
158.The evidence is littered with the mother engaging and enmeshing the children in her views of the father.
159.There was an incident on 2 September 2017 where the police were called. This was the Father’s Day incident. The children had clearly made up their mind not to go to the father and the mother had arranged for Ms GG to be present. Given the conversation between the children and the father it is clear that the children were not intending to go. The mother gave information to the police and I am satisfied that some of that information was correct. I am also satisfied that this event was intended to upset the father and to undermine the arrangement for Father’s Day. The mother succeeded in this endeavour.
160.The mother facilitated the children’s to visit the paternal grandmother on a weekend in December 2018 during the course of the hearing. The mother gave evidence that the children saw the paternal grandmother on the Sunday during the course of the December hearings and that the children spent about an hour with their paternal grandparents. The evidence of the paternal grandparents is that there was little communication, although there was exchange of gifts. The family therapist later gave evidence that this was a good step forward.
161.It is clear from the single expert’s report[37] that at least one of the children provided ‘unprompted’ information to him. This is indicative of information being passed onto the children by the mother.
[37] Exhibit E18 Tab 2 the single expert report page 36.
162.There was some criticism of the mother for not allowing the children to accept gifts when the arrangements were being supervised via the S Group. I have had regard to their reports including exhibit 21, which was initially mislaid but made available by the Independent Children's Lawyer shortly before these reasons were published. I accept the mother’s evidence that she had been informed that gifts were not to be exchanged. I accept that this was likely to be a miscommunication.
163.The mother gave evidence about her employment prospects, which I have discussed earlier, and her ability to earn income.
164.When cross-examined by the Independent Children’s Lawyer it is clear that the mother uses banning of screen time in an effective way, but has only used it once in relation to the children’s interaction with the father. This was at an appointment with the family therapist where the son was disciplined by the mother and where he apologised.
165.It is significant that the time the son spent with the father ended shortly after the freezing of the mother’s bank account. The previous time the son visited the father was on 7 May 2017 where he had clearly had a happy time.
166.The mother could not explain how the children learnt about the freezing of the accounts and prevaricated when cross-examined in that respect.
167.The mother provided some evidence which she said supported her assertion that she was under surveillance. I am not satisfied that evidence provided any such confirmation.
168.The evidence of the mother was troubling. She at times prevaricated and at times fabricated responses. I have treated her evidence with great caution and at times it is unreliable.
Ms GG
169.Ms GG is a friend of the mother and gave evidence in terms of her affidavit sworn 22 March 2018. She provided evidence of the events leading up to Father’s Day in 2017. Ms GG is clearly a close friend of the mother and her evidence reflected that friendship.
170.Her explanation that she and the mother were examining the maternal uncle’s new garage was inherently implausible. They knew the father was coming. I am satisfied that she was there to observe and give evidence. I have treated her evidence with caution given her alignment with the mother.
The maternal uncle
171.The maternal uncle provided evidence in terms of his affidavits filed 23 March 2018 and 20 November 2018.
172.He was an impressive and calm witness. He gave evidence clearly and concisely. He has provided significant support to the children and has encouraged them to spend time with their father.
173.He was careful and thoughtful in relation to the changeover on 2 September 2017 and was out of sight when the troubling interactions occurred between the father and the two children. I generally regard his evidence as cogent and reliable, although clearly supporting the mother, who is his sister.
Other Disputed Items
384.The mother contends that the jointly owned furniture at the Suburb F property and the Suburb H property has a value of $10,000 and $40,000 respectively. This is a total value of $50,000. The father contents that the furniture ought to be excluded from the pool of assets.[72]
[72] Exhibit E36B, notes 33 and 34.
385.The mother asserts that a caravan in her possession has no value, while the father asserts that it is worth $3,000.
386.There was no objective evidence of the current valuation of these three items. As such I have treated them as having no value. It was up to the parties to adduce expert evidence of these assets rather than rely upon their own lay assessments, which at best are guesses and the basis of those valuations is unclear. As such I will not include the guessed assertions as to value.
The unknown withdrawals
387.The mother was concerned that the father had not accounted for all of the funds from the business, including the sale of his former business where the parties received about $2.5 million dollars.
388.The forensic accountant’ noted:-[73]
Review of funds received disbursed by husband.
3.1I am instructed to undertake a source and application of funds analysis in relation to all monies received and disbursed by [the father] between 1 January 2015 and 30 June 2018 (the review period) …
3.2[The mother] asserts that there has been significant funds received and disbursed by [the father] since 1 January 2015 and those funds need to be traced through a variety of bank accounts to determine if there has been any ‘leakage of funds’. [The father] asserts he has been entirely transparent in the management of the funds.
[73] Exhibit E30 single expert forensic accountant report page 6.
389.The forensic accountant analysed in excess of 6,200 transactions and observed than on an overall basis there appeared to be no material ‘general leakage’. She classified a number of withdrawal transactions ‘unknown’ totalling $142,000, inclusive of the $118,000 detailed in paragraph 3.8 in her report. She asserted that the amount was immaterial in the overall flow of funds through the accounts, which were in excess of $8 million for both incoming and outgoing transactions.
390.The forensic accountant made enquiries as to withdrawals to the value of $142,000 which could not be identified. In her report she stated that:-[74]
The [father] was able to identify the majority of those transactions, however advised that he was unable to identify transactions totalling approximately $118,000 and advised “[Mother] to confirm and provide details”. The [mother] informed me that she was not aware of the transactions and, that because the [father] was the “financial controller” in the marriage, he should know why the amounts were withdrawn. [original emphasis]
[74] The forensic accountant’s report, paragraph 3.8.
391.I reject the mother’s claim for an add-back in relation to these sums, given that the amount was competitively small against the $8 million worth of transactions which occurred, that they occurred over an extended period of time in a number of withdrawals, and that the forensic accountant did not consider them to be a substantial feature of the accounts which she assessed.
Liabilities
Father’s loan from his parents
392.The father borrowed $350,733 from his parents. He asserted that liability in his financial statement.[75] The father asserts that he pays interest on the loan of eight per cent and that he has in part repaid some of that loan.
[75] Item 50 financial statement filed 21 November 2018.
393.He entered into a loan agreement with his parents which was exhibited. The existence and liability to pay this loan is supported by the father’s mother and father in their written and oral evidence. I accept that it is a liability and I accept the liability of $202,649.
394.The evidence of the father was that it came in and out of accounts in various amounts at the same time he was collecting income. He asserts that the whole of that sum was incurred in legal costs. I accept his evidence in that regard and I will treat that as a liability.
Mother’s loan from her brother and from the estate
395.It is clear that the mother overpaid her brother from her father’s estate by $13,126. I have included that sum in the list of assets as property of the mother.
396.The mother was cross-examined in relation to loans from her brother and her father and then her father’s estate totalling about $180,000, which has been repaid together with interest which the mother calculated. I am satisfied that the loans were made and the loans were repaid.
397.I accept the mother’s evidence in relation to the loans from her father, her father’s estate and her brother, including the repayments she made.
398.The mother asserted that she borrowed money from her brother, her father, and her father’s estate. She claimed that the total of these loans was $180,000, which at this time she has completely repaid with interest. The mother was cross-examined as to those amounts of money.
399.I accept her evidence, and I am satisfied that the loans were made to the mother and that she had repaid them. I will not treat them as a liability of the mother.
Outstanding money owed to M Pty Ltd
400.The father contended that he owed $78,673 to M Pty Ltd. He set that out in his financial statement filed 20 November 2018[76] and he provided the claim for that sum as Annexure X to his affidavit of 20 November 2018.[77]
[76] Item 53 payback claim by purchaser of M Pty Ltd.
[77] Exhibit E31 page 137.
401.I accept on balance that the liability has been established. It was impossible for the father to pay this out given of the freezing of the accounts in May 2017 and the date of this material is 16 June 2017. As such I will include it in the list of liabilities.
Contributions
402.The father submitted in his case outline[78] that his initial contributions were greater than the mother’s. He contends that both parties contributed financially and non-financially during the relationship. Further, the father asserts that the mother has frustrated his attempts to spend substantial and significant time with the children, which is why she has been their primary carer since separation.
[78] Exhibit E15B.
403.In her case outline[79] the mother asserts that the contributions of the parties during the relationship should be assessed equally as while the father was the primary income earner the mother was the primary homemaker and parent. She contends that her almost exclusive role as carer for the children continued after separation. The mother concedes that the father’s initial contributions were greater than hers.
[79] Exhibit E 16B.
404.I accept that the father’s initial contribution in relation to property were greater than the mother’s. He owned properties prior to the commencement of the parties’ relationship which provided the parties with a sum of money towards the acquisition of the Suburb F property and his interests in M Pty Ltd provided money which was paid into the mortgage offset account on the Suburb H property and discharged the mortgage over the Suburb F property.
405.The mother was cross-examined about the $50,000 she had at the time the parties’ commenced cohabitation. She said she paid that sum off the loan. She produced a document in support of that assertion.[80] I accept that the mother had $50,000 in savings at the time of cohabitation rather than the $12,000 asserted by the father, however there is still a discrepancy between their contributions.
[80] Exhibit EG mother’s affidavit 20 November 2018 page 69.
406.I find that the contributions of the parties were otherwise equal. In coming to this conclusion I have had regard to the fact that the mother had occupation of the Suburb F property after separation and had access to the monies from the sale of M Pty Ltd from December 2016 until the account was frozen in May 2017.
407.I conclude that the contributions of the parties at the commencement of the relationship and during the relationship are 48 percent in favour of the mother and 52 per cent in favour of the father.
The relevant section 75(2) factors
408.I have had regard to the relevant factors in set out under s 75(2) of the Act in relation to the non-superannuation, non-bequest property including those to which I have alluded to earlier in these reasons and those as set out as follows.
Section 75(2)(a) the age and state of health of each of the parties;
409.The mother is aged 47 and the father is aged 48. The mother contends that she has Crohn’s disease but that she is otherwise in good health. The father sets out his health issues in his trial affidavit in which he says he is in good health subject to some psychological stressors.[81] They are both in relatively good health, apart from the stress of these proceedings and the financial cost.
[81] Father’s trial affidavit – paragraph 145.
Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
410.I have had regard to the fact that in this property adjustment the parties in some ways divided part of the father’s the earning capacity by reason of the sale of the parties business shortly before separation.
411.However, I find that the father will continue to have a greater earning capacity and actual earnings than the mother into the future, and that it will take some years before the mother’s earning capacity is fully realised given her role as primary carer of the children.
412.The father contends that he earns about $50,000 per year and that his options for income earning are limited. I have concerns about the reliability of that evidence, and I am satisfied that he has a stronger earning capacity than does the mother. His history of earning strong income over the years is impressive.[82]
[82] Father’s trial affidavit – paragraph 65.
413.Both in relation to this factor and the s 75(2)(o) factor I have had regard to the father retaining the larger superannuation pool (about $149,000) which is a relatively minor factor given the size of the pool.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
414.Under the orders which I will make the mother will have the primary care of the three children. I have had regard to that circumstance in terms of the adjustment of property.
Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
415.No submissions were made in regard to this factor. However I have had regard to the parties commitments as set out in their respective trial affidavits and financial statements.
Section 75(2)(e) the responsibilities of either party to support any other person;
416.Neither party has the responsibility to support any person aside from themselves and the children.
Section 75(2)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
417.There was no evidence adduced that either party is in receipt of a government benefit.
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
418.The standard of living of both the parties and the children has diminished since separation.
Section 75(2)(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
419.Senior counsel for the father submitted that:-[83]
We would submit that the [mother] has been less than impressive in trying to determine when, and how she’s going to go back into employment. Her evidence is that she will. She thought that if she worked as an interior designer, she might receive in the range of about $60,000 a year. Historically, albeit some time ago when she was employed as an architect, she was earning about a hundred thousand a year. That’s paragraph 162 of the [father’s] affidavit. …
[83] Transcript of Proceedings dated 18 December 2018 page 44.
420.The mother has the care of the children. She is an intelligent person with a bachelor degree who will find paid work in the future. She has worked in the parties’ business and as a designer. She has been out of that work for a number of years.
421.I am satisfied that in the medium to longer term that the mother will find paid work but I am satisfied that her income will likely be less than that of the father, at least in the medium term until the children complete secondary education.
Section 75(2)(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;
422.This was not the subject of submission, and the mother asserted positively that she was not aware of any creditors who would be prejudiced by the making of an Order altering property interests as sought by her in the proceedings.[84]
[84] Mother’s trial affidavit, paragraph 84.
Section 75(2)(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
423.I have had regard to the relevant evidence in respect of contribution.
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
424.I have found that the parties commenced cohabitation in 2001 and they married in March 2003 and separated in December 2016. The marriage subsisted for in excess of fourteen years. As I have made findings earlier, during that time the mother was the primary homemaker and parent to the children. I have had regard to both the length of the marriage and the each parent’s role in that relationship.
Section 75(2)(l) the need to protect a party who wishes to continue that party's role as a parent;
425.This factor is not relevant, aside from acknowledging that the mother will continue in her role as primary carer for the children.
Section 75(2)(m) if either party is cohabiting with another person - the financial circumstances relating to the cohabitation;
426.This factor is not relevant in these proceedings.
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
427.Clearly I have considered the making of these property orders.
Section 75(2)(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
428.There was no submission in this regard.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
429.The father pays 50 per cent of the children’s private school fees and the son’s mobile phone account.
430.The mother asserts that the father pays no child support, but given the capital sum used by the mother, I am not satisfied that any adjustment should be made in this respect. No doubt a Child Support Assessment will issue in the near future, if that has not already occurred.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
431.The mother has a significant asset in the proceeds of her father’s estate, which I am addressing as a separate pool from the parties other property. That predicates against any large adjustment in relation to the s 75(2) factors.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
432.This factor is not relevant in these proceedings.
Section 75(2)(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
433.This factor is not relevant in these proceedings.
434.The primary factors in favour of the mother are that she will have the care of the children until they reach adulthood and that after a lengthy marriage the father will likely earn a greater income than the mother into the future. Had these factors been the sole or significant factors, I would have made a much larger adjustment in favour of the mother.
435.The primary factor in favour of the father is that the mother has the entitlement to the bequest from her father’s estate of $759,897, to which the father has made no contribution. Had this been the sole or significant factor, I would have made a meaningful adjustment in favour of the father.
436.However, it is the balance of all of these factors which is my task. I determine that the primary factors in favour of the mother are modestly greater that the primary factor in favour of the father.
437.Consequently, dealing with all of the relevant factors, in the light of the facts, I have determined that I will make a four per cent overall adjustment in favour of the mother.
438.The first pool of assets, being the superannuation and other non-bequest property, will therefore be split 52 per cent in favour of the mother and 48 per cent in favour of the father. I reiterate in that split I have considered that the father has a greater amount than the mother in superannuation property.
Just and equitable
439.If that is to be the case what is the outcome of the first pool of superannuation, non-superannuation property will be:-
Mother’s Property
The Suburb F property (determined value)
$2,100,000.00
Mother’s interest in the family trust (agreed)
$80,500.00
Mother’s interest in the family trust loan account (agreed)
$195,290.00
Mother’s asset being amount overpaid to her brother from father’s estate (agreed)
$13,126.00
Mother’s B Bank account ending in …44 (agreed)
$8,186.00
Mother’s B Bank account ending in …48 (agreed)
$104,610.00
Mother’s MM Ltd shares (agreed)
$3,060.00
Motor vehicle 3 (agreed)
$26,200.00
Mother’s paid legal costs[85]
$451,778.66
52 per cent of Joint B Bank account ending in 626 (agreed)
$3,642.60
52 per cent Joint B Bank account ending in 191 (agreed)
$1.04
Mother’s N Super
$689,000.00
Mother’s OO Super
$30,485.00
Mother’s QQ Super
$41,293.00
Mother’s RR Super
$8.00
Payable to the father
($888,495.22)
Total
$2,858,685.08
[85] Exhibit E48.
Father’s Property
The Suburb H property (agreed value)
$1,500,000.00
Father’s interest in the family trust (agreed)
$80,500.00
Father’s interest in the family trust loan account (agreed)
$195,290.00
L Pty Ltd (agreed)
$14,000.00
L Pty Ltd loan account
$197,174.00
48 per cent of Joint B Bank account ending in …26 (agreed)
$3,362.40
48 per cent Joint B Bank account ending in …91 (agreed)
$0.96
Father’s ANZ account
$8,845.00
Father’s B Bank account ending in …28 (agreed)
$386.00
Father’s B Bank account ending in …06 (agreed)
$4,188.00
Father’s NN Ltd shares (agreed)
$10.00
Father’s paid legal costs
$511,288.66
Father’s N Super
$812,000.00
Father’s PP Super
$97,755.00
Amount to be paid by the mother to the father
$888,495.22
The Suburb H property mortgage (agreed)
($1,042,454.00)
Liability of father to pay back M Pty Ltd (determined)
($78,673.00)
Father’s loan from his parents (determined)
($350,733.00)
Father’s litigation funding (agreed)
($202,649.00)
Total
$2,638,786.24
440.The bequest property consists only of the mother’s interest in her father’s estate, which has an agreed value of $759,897. She will retain this in its entirety, giving her an overall pool of property of $3,618,582.08.
441.I am satisfied that this would, in all the circumstances, be just and equitable.
Costs of the Independent Children’s Lawyer
442.These proceedings needed the involvement of an Independent Children’s Lawyer and an order was made to that effect early in the procedural history. The Independent Children’s Lawyer has been pivotal in terms of endeavours made to enable the children to reconnect with their father.
443.During the course of the hearing the Independent Children’s Lawyer submitted a costs notice[86] noting that the legal costs and fees of the Independent Children’s Lawyer totalled $21,249 and sought an order against each of the parties in the sum of $10,624.50.
[86] Exhibit E34.
444.Given the respective finances of the parties (which are not insignificant) and the need for an Independent Children’s Lawyer in these proceedings, I have considered all of the relevant provisions of s 117 of the Act and I determine that in all of the circumstances it is appropriate for a costs order to be made as sought by the Independent Children’s Lawyer.
445.It is open for the parties, once these reasons are delivered and orders made, to apply against the other party for an adjustment one way or another in terms of the legal costs payable by the parties and the Independent Children’s Lawyer. This is not intended to in any way interfere with the primary responsibility of each of the parents to pay the orders, however as I say reimbursement may be sought one way or the other.
I certify that the preceding four hundred and forty five (445) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 April 2019.
Associate:
Date: 15 April 2019
Key Legal Topics
Areas of Law
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Family Law